The senior advocate said that the country must enforce the US-like system, wherein judges are appointed through proper interviews

Mumbai: Noted advocate Indira Jaising on Saturday has batted for doing away with the present procedure of appointing judges, wherein the executive has a say. The senior advocate further said that the country must enforce the US-like system, wherein judges are appointed through proper interviews.

Jaising was speaking at the third annual RTI lecture organised by Moneylife foundation.

“Does living under a majoritarian regime have a chilling effect on the judiciary? Do they succumb to ‘the will of the people’ as represented by the government of the day? What we are seeing is a ‘threatened judiciary’ when a sitting chief minister can get away with gross contempt of court and humourist are hounded with contempt of court,” Jaising said. “Judiciaries are known to collapse when faced with majoritarian governments,” added.d

In her brief speech, Jaising also compared the “generations” of lawyers right from pre-independent India till date, how the ideologies of advocates have affected the judiciary and so on.

“The US system of appointment of judges at least has the merit of transparency. They are questioned on their ideology on the great issues of our times, the right to abortion, the wall of separation between religion and state and the rights of the LGBT community,” she said.

“We are in danger of loosing the secular state and must guard against judges who don’t believe in secularism being appointed by those who represent ‘the will of the people’. After all, judges swear an oath of allegiance to the Constitution and not to the executive,” the advocate said.

Jaising accordingly opined that instead of a “pick and choose” process, applications must be invited by aspirants throughout the country and only after an in-depth interview of such candidates, one must be appointed as a judge.

Whether the judiciary delivers or not depends on the people who get appointed as judges. Who makes these appointments? It was during the period of his tenure as former CJI that the Supreme Court made a tectonic shift, from judges being appointed primarily by the President of India with the aid and advice of council of ministers, to judges being appointed by the judiciary, in consultation with the prime minister no doubt.  This happened 12 years after a bench of seven judges of the Supreme Court had decided in the SP Gupta case, that the executive would have unlimited powers to appoint judges. Justice Venkatachaliah, therefore, played a very important role in the developmental journey of appointment of judges. Although he was not part of that bench, it fell upon his shoulders to make appointments of judges.  Many years later, the Supreme Court decided that not just the Chief Justice alone but a collegium of the Chief Justice, together with the four senior-most judges, would make appointments to judges of the Supreme Court and three senior most judges would make appointments of the high court. 

 To Justice Venkatachaliah’s credit, he made transfers of no less than 50 judges to different high courts on the ground that they had their own relatives practicing in those courts. It was perhaps the first attempt to get rid of dynasty and nepotism in the judiciary. He chaired, of course, as we all know, the Constitution committee. He made a suggestion that appointments should be made by the Chief Justice with two senior-most judges of the court and the law minster, and an outside jurist. This suggestion was not accepted.  

Many years later, the Judicial Appointments Commission Act was passed, in which, once again, the executive took primacy in the matter of appointments. We know that this was struck down by the Supreme Court returning the power of appointments back to the collegium. From your three speakers today, the keynote speaker Justice Venkatachaliah, Justice Sikri and me, I am the only one who’s a practising lawyer and I would choose, therefore, to speak from the point of view of a practising lawyer. This requires me to go through, a very brief history of the legal profession in India.  We know that lawyers played a very prominent role in the pre-Independence movement. They were deeply engaged with the freedom struggle and they became what we as the transitional lawyers. Those who straddle the world of pre-Independence and post-Independence. They came to be appointed as attorney generals and solicitor generals. I cannot help commenting that they were well-versed in colonial laws and common laws, but they were only beginners in a regime which guaranteed fundamental rights.  We then come to a generation of lawyers who were supported by business houses, whose’s main challenges were challenges to progress the land reform laws to nationalisation and also to liberty. These were lawyers who were supported by business houses. For example, Nani Palkhiwala was one of them.

Those who served the interest of big business and industry and provided them with a platform. They experimented with challenging laws on the ground that they violated fundamental rights but, as Justice Venkatachaliah himself points out, they failed miserably, when it came to the right to liberty, when it came to the AK Gopalan case. It was held that once due process of law was complied with, the reasonableness of the law need not be looked into.  I would like to give now a sociological accounting of the Bar in India, since then.  

The Bombay Bar appears to have dominated developments in the country including in the Supreme Court. They were drawn mainly among Parsees and Gujaratis. The Calcutta Bar was dominated by bhadralok, irrespective to the caste and creed to which they belong. The Madras Bar was dominated by Tamil brahmins, and the TamBrahms in the pre-Independence days, in the post-Independence periods, the character of the Madras Bar appears to have changed in the matter of confronting social justice issues.  It is this generation of lawyers who could have been role models for the future of the legal profession in this country and the reason I go into this is because this is the pool of talent, from which we draw our judges.  In my opinion, this generation can be characterised as what I call the ‘lumpit’ generation of lawyers—overly deferential to power and authority, and willing to accept whatever came their way. I will now move on to my own generation of lawyers. I call myself one of ‘midnight’s children’, deeply influenced by the ideas and values of the freedom struggle. But what was the freedom struggle? Justice DY Chandrachud describes it eloquently in Indian Young Lawyers Association as follows, “Reading Dr Ambedkar compels us to look at the other side of independence movement. Besides the struggle for independence from the British rule, there was another struggle going on for centuries and this was the struggle for social emancipation. It has been the struggle for independence of an unequal social order. It has been the fight for undoing of historical injustices and for righting fundamental wrongs with fundamental rights. The constitution of India is the end product of both these struggles. It is the foundational document, which is the text and spirit aimed at social transformation, namely the creation and preservation of an equal social order. The constitution represents the aspirations of those who were denied the basic ingredients of a dignified existence.” It is this approach that has guided my own lawyering in the past 50 years. There is no doubt that the journey in law was inspired, as Justice Venkatachaliah points out, by public interest litigation developed by Judges like Justice Bhagwati and Justice Krishna Iyer. Without them, our efforts would have been as nothing.  He’s referred to two of the cases which I argued.

The Olga Tellis case, for the rights of pavement dwellers and the Bombay hawkers case, for the rights of hawkers. Both of which dealt with the right to livelihood and dignity. These were cases which brought to court the concerns of the disinherited of the earth. Hawkers, pheriwalas, homeless, the rights of self employed, vegetable vendors, the rights of tribals and nomads, and the rights of women to hawk on the streets of Ahmedabad.  

The subsequent developments in PIL jurisprudence must be left to another day. We are yet to evaluate the impact of the opening of the doors of the court to everyone. Now  one resident of Delhi,through a PIL, can question a whole movement of farmers on the ground that he is a ‘tax payer’ and hence has the locus to stop the protest of a whole community. Individual rights have the potential to defeat collective rights, a very dangerous precedent. I say no more except that this voice of the generation of tax lawyer, a generation which sees its own individual inconvenience over all else.  Way back in 1984, when I was arguing the Olga Tellis case, I was told that the pavement dwellers were a ‘nuisance’ and need to be removed as boxes and benches and garbage needed to be removed from pavements by the Bombay Municipal Corporation. I see the same attitude today in the tax-paying community.  We then come to the National Law School lawyers.

This generation of lawyers was well suited to the needs of structural readjustment and neo-liberalism polices all over the world and the demands of globalisation. They entered the comfort zone of hallowed law firms giving a go by to litigation. Regulatory agencies assumed importance and they all flocked there. Electricity, infrastructure and the Internet were the new havens for lawyers. Surprisingly, anti-competition law, which should have gone hand-in-hand with these developments, has never come into its own at the same time.

 It is only recently that we have seen young lawyers from all law schools align themselves with social and political movements defending those unlawfully detained in the name of conspiracies in the Delhi riots and those unjustly prosecuted for their social media posts in the name of creating communal disharmony. It is almost a return to the values of the freedom movement with the Constitution in hand. This gives hope for the future. If 20th century Bar in India was an anglicised Bar influenced by Oxbridge alumnus and Barristers, the Bar in 21st century in India is partly getting Americanised with ideas brought in by LLM or doctorate alumnus from Ivy League Universities like Harvard, Pennsylvania or Columbia.  This is the pool of talent from which judges will be drawn over the decades, their decisions will be predictable depending on the pool for which they are drawn. And this finally brings me to the what I call the ‘ideological court’. The evidence is on the table.

From the decision in Babri Masjid to the decision to put in colds-storage the challenge to the CAA, electoral bonds, the challenge to the abolition of Article 370. From the grant of bail to some journalists but not to others, we see the evidence of a self-conscious court. But perhaps this is a charitable description. What we really have is more than one Supreme Court in the Court and sometimes more than one judge in one judge. It has become a ‘pick and choose’ court, where power of the master of the roster is supreme over all else. 

Does living under a majoritarian regime have a chilling effect on the judiciary? Do they succumb to ‘the will of the people’ as represented by the government of the day? What we are seeing is a ‘threatened judiciary’ when a sitting Chief Minister can get away with gross contempt of court and humourist are hounded with contempt of court. Judiciaries are known to collapse when faced with majoritarian governments. In our own country, we have the example of ADM Jabalpur with judges expressing ‘diamond bright diamond hard’ hope that the State will treat its citizens like its own children in detention. Are we perhaps seeing a repeat of history? The US system of appointment of judges, at least, has the merit of transparency in the matter of appointment of judges. They are questioned on their ideology on the great issues of our times, the right to abortion the wall of separation between religion and State, and the rights of the LGBT community.

In contrast, despite the facade of decisions being made by the judiciary, we know that no appointment can go through without the concurrence of the executive but, unlike in the US, there is no public scrutiny of the appointment prior to appointment. We are in danger of loosing the secular State and must guard against judges who don’t believe in secularism being appointed by those who represent ‘the will of the people’ After all, judges swear an oath of allegiance to the Constitution and not to the executive. 

 I propose, instead, equal opportunity in the matter of appointment of judges for all those who are qualified. Applications should be invited for such appointment so that all those interested can apply and following an interview based on objective criteria, they can be appointed. This may ensure that more women, Dalits and LGBT persons get appointed to the judiciary. We are one of the most diverse nations of the world, a diversity which is reflected in our religions our languages and culture. This diversity is not reflected in the judiciary as it must be in all institutions of governance. Perhaps then they will be able to perform the role expected of them. 

We are nowhere near a post-COVID world. Not surprisingly, the pandemic has made the rich richer and the poor poorer. Our challenges are many, already the right to food security is under threat by the supply chain being monopolised by big business and the dismantling of the MSP (minimum support price) and the dismantling of the ECA (Essential Commodities Act). More and more, the judiciary will have to handle these issues in court and unless they are equipped with the philosophical tools to deal with equal justice, the court will fail in its role as the sentinel on the ‘qui vive’.

“This may ensure that more women, Dalits and LGBT persons get appointed to the Judiciary. We are one of the most diverse nations of the world, a diversity which is reflected in our religions our languages and culture,” Jaising said.

“This diversity is not reflected in the Judiciary as it must be in all institutions of governance. Perhaps then they will be able to perform the role expected of them,” she added.

courtesy Moneylife